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Election Interference: Aileen Cannon Denies Republicans Speedy Trial in Stolen Document Case

In comments to my thread describing how Aileen Cannon had deferred decision on the Trump stolen documents case, I admitted a lot of smart people were warning that her order was a non-appealable death knell for the May trial.

Those smart people were right. Judge Cannon has all but ensured that Republican voters will not have a chance to learn whether Trump really did store nuclear documents in his bathroom before picking him as their candidate.

Yesterday, Jay Bratt asked her to set an earlier deadline for CIPA 5 — the part of the process where Trump describes what he wants to use at trial.

In the Court’s Order Granting in Part Government’s Motion to Continue Trial and Resetting Deadlines (ECF No. 83), it set November 17, 2023, as the deadline for the defense to file their CIPA Section 5 notice. In ECF No. 205, the Court stayed the November 17 deadline, among others, and in its Order Granting in Part Defendants’ Motion to Continue Pretrial Deadlines and Denying without Prejudice Motion to Adjourn Trial, the Court superseded all deadlines except those identified in the Order. ECF No. 215 at 8. The Court’s new set of CIPA deadlines did not include a date for the defense to file a CIPA Section 5 notice.

[snip]

Defense counsel now have full access to approximately 5,500 pages of classified discovery (see ECF No. 215 at 4) – the vast majority of the classified discovery in this case – and the laptops necessary to create pleadings referencing those materials. They therefore are in a position to provide notice under CIPA Section 5 as to which documents or pieces of information from these 5,500 pages, or from any other source, they reasonably expect to disclose at trial. Providing such notice by a set, near-term date will facilitate the completion of CIPA litigation before the May 20, 2024 trial date.

[snip]

The Government acknowledges that (a) rulings on its CIPA Section 4 motion will likely result in the production of a limited amount of additional classified discovery;2 and (b) the defense could be successful in compelling the production of other classified materials. However, rather than delaying setting any CIPA Section 5 deadline until the CIPA Section 4 and discovery litigation is complete, the Court should reset the initial CIPA Section 5 deadline for December 18, 2023, with the understanding that it may be necessary to permit a supplemental CIPA Section 5 notice after all classified discovery issues have been resolved.

Judge Cannon responded within short order.

No.

PAPERLESS ORDER denying without prejudice 219 Motion for CIPA Section 5 Notification. As stated in the Court’s November 10, 2023, Order 215, “[a]ll previously remaining deadlines in the Court’s July 21, 2023, Order are superseded except calendar call and trial.” The Court “reset[] the first set of pre-trial deadlines” as indicated on pages 8 and 9 of that Order 215 and scheduled a conference on March 1, 2024, “to address remaining deadlines.” To the extent the Special Counsel’s motion seeks reconsideration in part of the Court’s November 10, 2023, Order 215, that request is denied. CIPA Section 5 deadlines, and all other pre-trial deadlines not included in the first batch of pre-trial deadlines contained in the Court’s revised schedule 215, will be set following the March 1, 2024, scheduling conference.

At the very least, this ensures that Republicans will not know whether a jury finds that Trump harm the United States before they make him the party nominee. It may mean no voter gets to know that.

I’ve finally found Trump’s election interference!

John Lauro’s DC Delay Tactics Backfire in Florida

November 10, 2023/193 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection, Leak Investigations /by emptywheel

As I noted, right after Judge Aileen Cannon suggested, during a hearing on November 1, that conflicting trial schedules in DC and Florida meant she’d likely delay the stolen documents trial scheduled for May 20, Trump’s lawyers in DC filed to stay their DC trial. DOJ notified Judge Cannon right away that Trump had done that — basically proving the contention they made in the hearing that Trump was just stalling.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

Judge Cannon hates to be embarrassed and probably was particularly perturbed that DOJ suggested she was allowing herself to be manipulated. She filed an order basically telling them never to do that again.

The parties are hereby reminded of the requirements of Local Rule 7.8 on Notices of Supplemental Authority. Except as authorized by Court order, the substantive content of any such notice (or response) may not exceed 200 words and may not be used as a surreply absent leave of Court. Future non-compliant notices or unauthorized filings will be stricken without further notice. Signed by Judge Aileen M. Cannon on 11/3/2023.

But it worked, at least for now. Judge Cannon has issued an order revising pretrial deadlines, some of which (such as a December response to a government motion already filed) don’t make sense at all. But she has not delayed the May 20 trial date and won’t consider it until March 1, at which point it will be clear whether the DC case will go forward that month.

Following review, it is ORDERED AND ADJUDGED as follows. Defendants’ Motions to Continue Pre-Trial Deadlines are GRANTED IN PART for the reasons stated below. Defendants’ Motion to Continue Trial, currently set for the two-week period commencing on May 20, 2024, is DENIED WITHOUT PREJUDICE, to be considered at a scheduling conference on March 1, 2024, following the initial set of pre-trial and CIPA steps in this proceeding as outlined below.

This increases the chances that at least one of these trials will go foward before the election.

Jack Smith Attempts to Prevent Trump from Delaying DC Trial with Interlocutory Appeals

November 7, 2023/40 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection, Leak Investigations /by emptywheel

In a hearing in the stolen documents case on November 2, Jay Bratt implored Judge Aileen Cannon not to base the timing of the Florida trial based on assumptions about the DC case, because that trial date

The Court really cannot let or should not let the D.C. trial drive the schedule here. In the D.C. case, they are making many of the same arguments, though they have not yet filed a motion for adjournment. They have already said that they likely will. They have talked about —

[snip]

A lot of this, though, is in the realm of the — I don’t want to say hypothetical, but it is in the realm of we don’t know what is going to happen. We don’t know what is going to happen in this case. We don’t know what is going to happen in the D.C. case. Among the things that the Defense has raised in the D.C. case is that if there are adverse rulings on any of the pending motions to dismiss, that they would seek an appeal and seek to stay the proceedings. That could happen. We don’t know. Obviously, there are arguments both ways, arguments both before the Trial Court before the D.C. Circuit, but that could happen. That trial date could disappear.

[snip]

Things could happen, things could happen with the D.C. case that would make going forward on May 20th, 2024, in this case not feasible. That may happen and we can address that, at that time, but we should be moving forward in this case.

The one thing he mentioned that could happen was a defense request to stay proceedings pending appeal.

Judge Tanya Chutkan certainly doesn’t want anything to delay the DC case. She said that explicitly in an October 16 hearing on Trump’s bid to stay her gag order.

THE COURT: This trial will not yield to the election cycle and we’re not revisiting the trial date, Mr. Lauro.

Perhaps to make that even clearer, after Trump filed to motion a stay pending appeal of any decision on his Absolute Immunity argument on November 1, she issued a requested order pertaining to jury selection by setting the beginning of that process to start on February 9.

But Jack Smith’s team appears to be concerned that Trump may use interlocutory appeals to delay the trial. In a response to Trump’s November 1 motion, Molly Gaston not only opposed that stay (which she described as an attempt to apply appellate and civil procedure to this criminal trial), but she requested that Judge Chutkan prioritize those decisions that are subject to interlocutory appeal: the Absolute Immunity bid, and one part of Trump’s Constitutional challenge to the indictment pertaining to double jeopardy.

[T]he defendant’s stay motion exposes his intention to use his meritless immunity claim to disrupt the Court’s schedule. Accordingly, to prevent undue delay and maintain the trial date, the Court should consider and decide first among the motions pending on the docket the defendant’s two claims that could be subject to interlocutory appeal: presidential immunity and double jeopardy.

In her motion, Gaston lays out Trump’s various dilatory tactics.

The defendant has planned to file this motion for months but waited until now in hopes of grinding pretrial matters to a halt closer to the trial date. As early as August 28, 2023, for instance, defense counsel informed the Court that the defendant would raise “executive immunity . . . with the Court likely this week or early next week, which is a very complex and sophisticated motion regarding whether or not this court would even have jurisdiction over this case. . . .” ECF No. 38 at 33-34. But the defendant did not file an immunity motion that week or the following. Instead, he waited more than a month before filing the promised pleading on October 5. See ECF No. 74. The defendant then waited another month to file the stay motion, late at night on November 1. Tellingly, earlier that same day, when defense counsel appeared at a hearing in the defendant’s criminal case in the Southern District of Florida, he used this Court’s March 4 trial date and pretrial schedule as an excuse to try to delay that trial—without disclosing that, within hours, he would file his stay motion here seeking to disrupt and delay the very deadlines in this case that he was using as a pretense. See United States v. Trump, No. 23-80101, Hr’g. Tr. at 24 (S.D. Fla. Nov. 1, 2023). In short, the defendant’s actions make clear that his ultimate objective with the stay motion, as has consistently been the case in this and other matters, is to delay trial at all costs and for as long as possible.

To thwart Trump’s efforts to stall any longer, Gaston requests that Chutkan prioritize the issues that can be appealed.

To limit such disruption, the Court should promptly resolve the defendant’s immunity motion, as well as his double jeopardy claim that is also potentially subject to interlocutory appeal, so that the Government can seek expedited consideration of any nonfrivolous appeal and preserve the Court’s carefully selected trial date.

She promises DOJ will use all mechanisms available to accelerate Trump’s own appeal.

To prevent the defendant from using the timing of any such appeal to disrupt the Court’s trial date, the Court should promptly consider and decide his immunity and double jeopardy motions. If the Court rules in the Government’s favor and the defendant appeals, the Government will take all possible measures to expedite the appeal, see Apostol v. Gallion, 870 F.2d 1335, 1339-40 (7th Cir. 1989) (identifying mechanisms such as requesting summary affirmance or asking to expedite the appeal), just as the defendant sought to expedite his appeal of the Court’s Rule 57.7 Order—relief that the court of appeals provided. See United States v. Trump, No. 23-3190, Order (D.C. Cir. Nov. 3, 2023) (expediting merits briefing and oral argument). In any event, although a non-frivolous appeal would temporarily divest this Court of jurisdiction, it would do so over only “those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam). In sum, the Court’s prompt resolution of the defendant’s immunity and double jeopardy claims would best position this case to stay on track with its current pretrial schedule and trial date.

The thing is: The double jeopardy claim is frivolous; James Pearce noted that the four charges in the current indictment are for a totally different crime than the incitement of insurrection charged in impeachment.

But no matter how shitty the Absolute Immunity bid is, because of the historic nature of the case, all judges are going to take it seriously, including Chutkan.

The Absolute Immunity bid was fully briefed on October 26. Trump’s reply in the double jeopardy bid is due next week.

I don’t know appellate procedures well enough, nor can I imagine how John Roberts’ court will respond to a request to expedite something like the Absolute Immunity request.

But I do know that Jack Smith’s team seems to recognize that this bid for delay might work. Political pundits on both sides of the aisle are accounting for a trial that will start on March 4. But there has not yet been enough scrutiny on whether Trump’s bid for delay will succeed.

Stan Woodward Claims He Doesn’t Know Where the Missing Beautiful Mind Boxes Went

November 4, 2023/48 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Perhaps the most amazing detail in the stolen documents transcript of last week’s hearing before Judge Aileen Cannon is that until the summer, Trump still had a Q clearance.

There is a category of documents that it — actually in unclassified discovery, we learned a week or two ago that there is a certain category of documents that require what is called a “Q clearance” and it includes one of the charged documents, and we learned that it’s a Department of Energy program. We learned that President Trump continued to have an active security clearance, even after he was indicted in this case, with the Department of Energy. Now that, in our view, is the definition of Brady. It was — I’m not going to say it was buried, but it was provided to us in discovery as part of miscellaneous materials at some point in the third or fourth production. I mean, it is literally a memo from the Department of Energy dated June — dated late June of this year, June 28th of this year, saying that, oh, we should remove Donald J. Trump from the person who has an active security clearance. He has been charged with possessing a document in violation of federal law, when he has an active security clearance with the holder of that document.

The detail doesn’t help as much as Trump’s attorney, Todd Blanche, would have you think. Whatever clearance Presidents get under the Atomic Energy Act (especially since presidents don’t get clearance; on Bluesky, Cheryl Rofer suggests he may have gotten DOE clearance while still a candidate) obliges them to follow document handling rules that might not have been as meticulously spelled out for Trump under his access to other classified documents. That he still had access when he was found with nuclear documents in August 2022 only means he was affirmatively violating the terms of his Q clearance, not that he could legally store nuclear documents in his gaudy bathroom.

Most people who get charged under the Espionage Act have or had clearances; those clearances actually make it easier to prosecute them.

Though Trump finally added someone appropriate to an Espionage Act trial last month, former SDNY National Security AUSA Emil Bove, Blanche still seems to have a woefully inadequate understanding of how 18 USC 793 elements of the offense get proven at trial.

And Jay Bratt seems to be unable to conceive that his counterparts (and, probably, Judge Cannon) fail to understand that.

Bratt’s attempt to explain all this — something that makes a lot of sense to me from covering so many of these trials — was just one of two times where (in the transcript at least) Cannon abruptly cut off Bratt, as she often does when she risks embarrassment.

BRATT: I do not — we do not believe that the motion to compel litigation needs to be complete before they can file with the Court their theory of defense with respect to the 793 charges, and it kind of strains credulity that they say they can’t do that. You know, the elements of 793 are unauthorized possession of a document containing national defense information, possessing it willfully, that is with knowledge that what you are doing is unlawful, and failing to return it to a proper person. All that information they can flesh that out for the Court, and there is really — they may have legal — separate legal challenges to the 793 charges, but if you look at the elements, those are the defenses: Either he didn’t possess it, or he was authorized to possess it, or the information doesn’t contain national defense information, or he wasn’t acting willfully, or he returned it before he was being asked to return it. Those are the defenses, and they may have other color they want —

THE COURT: But to some extent, of course, one would have to review the relevant classified discovery in order to formulate a meaningful response, even if maybe not entirely complete, it would be difficult to just sketch out a skeleton, so to speak, of your theory without really doing so rooted in the documents themselves.

MR. BRATT: So I’m not sure that you do need to be able to say, no, we know this doesn’t contain NDI for the Court to rule on whether or not what we are presenting in Section 4 is relevant and helpful to the Defense, I don’t think so. I understand that, you know, they have said in their pleadings that they are going to strongly contest whether or not the information was national defense information, strongly contest whether it was closely held. Our burden is to prove that it was, and we embrace that burden; but these documents, you know, I —

THE COURT: That’s fine. We don’t need to talk about the actual contents of the documents, obviously, given this is a public hearing.

Blanche was pretty obsessed with the classification determinations, marveling over the fact that prosecutors had to talk to the Intelligence Community before deciding what documents to charge, what documents they could charge.

We have seen communications between NARA and the Department of Justice and the White House and the Special Counsel that started way before what has been publicly disclosed and extensive meetings, extensive communications; and so we feel very strongly and expect that we will win on that, when we file the motion that NARA is absolutely part of this prosecution team and that the intelligence communities that they worked very closely with in determining the — well, from what we can tell, the particular documents that they chose to charge, so there is purportedly a tranche of documents that have classified headings on them, and then 32 that they decided to charge. That wasn’t just done in a vacuum. They didn’t just, you know, pick 32 documents out of a hat and say, “We will go with these.” There was a lot of coordination that we can tell from the materials we do have with the intelligence community that ultimately led them to proceed the way they did.

So yes, we have an answer with them. They say very strongly that they view the prosecution team as being limited to the Special Counsel’s Office and the FBI, and we very strongly believe that’s wrong.

That may have been a cynical ploy to treat the IC as part of the prosecution team, which in turn may be an attempt at graymail.

Blanche also claimed that the defense had not yet received all the classification reviews for these documents, and had yet to receive Jencks production for people he imagines will sit on the stand and attest to the classification of each document, in a trial where the standard is National Defense Authorization, not classification.

THE COURT: What about classification reviews, have you received all of those?

MR. BLANCHE: No, Your Honor, we have not received all of them. That is one of the things that we are continuing to ask about. We have received them for — I believe for the charge documents; but as what should be obvious from the volume compared to the 32 counts, there is a tremendous number of documents that are extraordinarily important to our defense that are purportedly classified that we don’t have any information about at this time.

[snip]

A little bit about the classified Jencks material, as was discussed. The issue of whether a particular document is classified or not is something for the jury. And what we are looking for in discovery and what we don’t have is that has to be from a witness. There has to be a witness that is testifying about why a particular document is classified; and as part of that, like any witness, we are entitled to 3500 and Jencks material and we don’t have that. We don’t have that for all the witnesses, and our concern is that there is this class or category of Giglio and Jencks material that we are going to get at some later date which we are then going to — it’s another Section 4 litigation, at that point, because we are going to then ask the Court what we can use to impeach the witness, what information we are allowed to cross-examine him or her on.

Bratt did correct Blanche to say that Trump had already gotten all the classification determinations for all the classified documents retrieved from Mar-a-Lago.

THE COURT: Now, I went through some of these categories with Mr. Blanche, but classification reviews, are those included in the 5,500 and/or the disks?

MR. BRATT: Yes. And just to respond to something Mr. Blanche said, and it may have been oversight, it is not just for the 32 documents. It is for all 340-some documents that were at Mar-A-Lago.

But I just think that Blanche doesn’t get how easy it’ll be to convince jurors that you can’t put nuclear documents in a beach resort shower (and that’s all before the smoke and mirrors that the government uses in all Espionage Act trials, which will be epically contentious here).

I don’t think he understands any of this.

This all brings me to something I’ve been wondering: what the government has been withholding anticipating its CIPA 4 filing, which has been delayed by various Trump games about CIPA. CIPA 4 covers stuff they’ll share with Judge Cannon to have her rule whether the material needs to be turned over to the defense (the standard is whether the material is relevant and helpful to the defense), and if so, whether DOJ can use substitutions for some of the information.

This is my updated track of the universe of classified discovery.

Pretty much everything that should obviously be there is there:

The stolen documents themselves
All the witness testimony about the documents
The discussions about classification reviews of the documents (which Brian Greer has suggested were likely somewhat limited in anticipation of trial)

But there’s one thing not mentioned — at least not obviously — that always proves contentious in 793 cases: The damage assessment.

One way defendants always attempt to prove that things aren’t National Defense Information is by pointing to a report — if they get one — that nothing blew up after they released a document or left it in their beach resort shower.

Often defendants don’t get them.

I’m particularly interested in what kind of damage assessment the Intelligence Community did here because of a footnote included in the 11th Circuit appeal last year, which I wrote about here:

A footnote modifying a discussion about the damage assessment the Intelligence Community is currently doing referenced a letter then-NSA Director Mike Rogers wrote in support of Nghia Pho’s sentencing in 2018. [This letter remains sealed in the docket but Josh Gerstein liberated it at the time.]

[I]n order to assess the full scope of potential harms to national security resulting from the improper retention of the classified records, the government must assess the likelihood that improperly stored classified information may have been accessed by others and compromised. 4

4 Departments and agencies in the IC would then consider this information to determine whether they need to treat certain sources and methods as compromised. See, e.g., Exhibit A to Sentencing Memorandum, United States v. Pho, No. 1:17-cr-631 (D. Md. Sept. 18, 2018), D.E. 20-1 (letter from Adm. Michael S. Rogers, Director, National Security Agency) (“Once the government loses positive control over classified material, the government must often treat the material as compromised and take remedial actions as dictated by the particular circumstances.”).

Even on its face, the comment suggests the possibility that the Intelligence Community is shutting down collection programs because Trump took documents home.

You can’t very well do nothing after you learn some of the most sensitive government documents were parked on a stage in a room hosting weddings attended by all manner of foreigner and grifter. You can’t do nothing after learning that Trump freely blabbed about the content of his stolen documents to anyone who bought access to him. You can’t do nothing after a Five Eyes document gets dumped out of a box in a storage closet that musicians and other resort personnel have accessed. You’ve got to go to your Five Eyes allies and explain that America’s former President is a dumbass and so the allies should take measures assuming that some drunken guest got a look at that document.

You might not even be able to charge documents as sensitive as these if the underlying programs hadn’t had to be rolled up. The spooks are going to prefer to protect the programs over vengeance against the dumbass former President.

Which brings me to the most intriguing claim made at the hearing.

Stan Woodward — Walt Nauta’s attorney — claims that neither he nor the government have figured out where all the missing boxes have gone.

[T]he Special Counsel has directed us to certain portions of the CCTV footage that they view as the most relevant, but there is — from what we know and from our defense, there is a tremendous amount of CCTV footage that we believe has been produced that is not what they have identified that is extremely relevant to us. For example, to the extent that boxes were moved on occasions other than what is delineated in the indictment, that is certainly something that matters to us.

[snip]

We have, of course, the benefit of consultation with our clients and are able to talk about what video we should be looking at and what video we should not be looking at. And the entire nature of the allegations, of the charges in this case are about missing boxes, right? The indictment is charging Mr. Nauta — and I’ll just stick with my client, with Mr. Nauta — with having moved boxes. Some number of boxes come out of a storage room, a lesser number of boxes go into the storage room, and Mr. Nauta is charged with hiding those boxes from whether it is Trump’s then counsel or whether it is the Government. And obviously, we are interested in knowing where those boxes are if they are, in fact, missing. The CCTV footage is what is going to help us understand that riddle.

Now, the Government does not know where those boxes went. As far as I can tell, to this day, the Government does not know where the boxes they allege were hidden ended up.

[snip]

I have a whole separate computer that I’m using just to do these extractions so that I can go in and start watching this days of video so that we can make an assessment of what this case is all about and whether it is about missing boxes or about boxes that just weren’t found when the FBI conducted its search of the property.

Now, Woodward has a habit of saying things that I find … shall I say, unpersuasive?

This certainly feels like one of those instances, coming as it did amid a schtick whereby Woodward repeatedly referred to the government, then corrected himself to say Special Counsel, something that seems to mirror Judge Cannon’s own preferences for calling Jack Smith’s office the OSC (John Durham used this abbreviation but no one else does).

Woodward is attempting to claim that he needs to delay the trial past the election because he needs to review all of ten years worth of surveillance video to defend his client. I’ve seen him make similar claims in January 6 trials.

More importantly, this is not a remotely fair representation of the charges against Nauta, which have to do with Nauta claiming to know nothing about moving boxes within days of being caught on surveillance video moving boxes, then allegedly attempting to destroy the video that captured him moving those boxes. Importantly, even if someone else moved a bunch of boxes that aren’t otherwise included in the indictment, it doesn’t exonerate Nauta. It could even inculpate him: if boxes were at Mar-a-Lago for someone else to move because Nauta had taken steps to withhold them from the government, it means his alleged obstruction would have made those other movements possible.

Plus, one big reason why the government charged Nauta, I believe, is because they believe he knows what happened to the missing boxes, including the ones he packed up to go to Bedminster where they disappeared forever.

I don’t doubt that the government hasn’t accounted for all the missing boxes; certainly Bratt did not correct Woodward on this point.

But one reason the government would have had to get ten years of video is to attempt to see who else entered that closet, to see who was in the closet when a Five Eyes document tumbled out, to see whether any of the foreign visitors to Mar-a-Lago seemed to know to look in the closet.

That’s not something that would show up in the indictment, not without proof that Trump willfully told visitors where the documents were.

But if Woodward is telling the truth about needing to see who else was moving boxes around, rather than just using the volume of video to stall, it might suggest he’s trying to find out what you might otherwise learn from a damage assessment. It might suggest that either Nauta hasn’t been entirely forthcoming with Woodward or Trump isn’t being forthcoming with his lawyers or his trusted valet.

Learning what the government saw in the surveillance video about moving boxes is not remotely necessary for defending Nauta against the charges against him. It might have a lot to do with understanding how ugly the story prosecutors will tell at trial will be.

Hours After Aileen Cannon Suggests She’ll Stall Florida Prosecution, Trump Moves to Stall DC One

November 2, 2023/61 Comments/in 2020 Presidential Election, 2024 Presidential Election, January 6 Insurrection, Leak Investigations /by emptywheel

Judge Aileen Cannon has not yet released a ruling describing how much she’ll bow to Trump’s manufactured claims of classified discovery delays in the stolen documents case, but she made clear that she will delay the trial somewhat. As reported, at least, that delay will come because of the competing schedule in DC.

Trump’s lawyers argued that they need a delay in the documents case because preparations for it will clash with the federal election case, which is slated to go to trial on March 4 and could last several months.

Trump’s indictment in the election case — which came days after Cannon set her initial timeline for the document case — “completely disrupted everything about the schedule your honor set,” Trump lawyer Todd Blanche told Cannon.

Another Trump lawyer, Chris Kise, personified the crunch the former president’s attorneys are facing, phoning into the hearing from a New York courthouse where Trump is undergoing a civil trial targeting his business empire.

“It’s very difficult to be trying to work with a client in one trial and simultaneously try to prepare that client for another trial,” Kise said. “This has been a struggle and a challenge.”

Note: as DOJ pointed out, Kise’s NY trial schedule was already baked into Cannon’s schedule.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

The “Piles” of Chris Kise Bullshit Devlin Barrett Claims to Believe

October 29, 2023/40 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

According to this piece, Devlin Barrett (this time, with Perry Stein) claims to believe a bunch of Chris Kise bullshit that has already been debunked in court filings.

One key issue is how much time Trump and his legal team get to review the piles of secret evidence in the case. Trump’s lawyers have accused the government of being too slow to provide access to the full catalogue of classified papers, and insist they need more time to prepare.

It’s true that Trump has claimed that. It’s true that Trump insists they need more time. But these claims were largely manufactured, which was readily apparent if you read the court filings closely.

Over the last five weeks, Trump’s lawyers have made a series of claims about classified production to support a bid to delay the stolen document trial until after the election.

Some of those were real: In particular, the Court Information Security Officer had to keep juggling a number of the documents Trump stole because they were so sensitive.

The first set probably involved the single charged and some number of uncharged nuclear documents, which defense attorneys were not yet cleared to access (the CISO basically removed them from the defense SCIF so the attorneys would be cleared to read everything that was left in there).

The second set — of first four and then another five — of the charged documents are Special Measures documents (those with additional compartments). Those could not be stored in the existing SCIFs in Miami without additional measures put in place. They were available in DC, and have now been made available in Miami. Altogether, it appears those Special Measures documents are around 44 pages in length. The defense team still needs a laptop equipped to write about them, the only apparent remaining delay in classified materials outstanding.

Those exchanges (most clearly laid out here) have revealed that, save for some classified FBI Agent emails that DOJ will provide closer to trial as Jencks production and some documents DOJ wants to provide with substitutions under CIPA 4 that this fight is holding up, this is the current universe of classified discovery in the case.

At less than 5,500 pages, it could hardly be called a “pile,” as Devlin did, unless you were referring to the horse manure that Kise was spreading.

Many of the claims that Chris Kise made were transparent bullshit. The most important one — because it appears to have fooled Aileen Cannon — is that the reason why a bunch of classified documents weren’t available in Miami (some were available in DC, where a number of Trump’s lawyers are) is because the defense attorneys weren’t in Miami to read them, something they delayed doing during several competing filings in this dispute. A CISO can’t just drop off nuclear documents in an unattended SCIF, but the guy who left the same document in his beach resort may not understand that.

It’s possible the defense put off going to Miami because the Special Measures documents were not yet there.

What’s clear, however, is that Trump’s team waited 11 days before reviewing documents that were ready for their viewing once they showed up to review them, then blamed DOJ because they waited.

A still more amusing complaint is that DOJ provided a disk with the items in a box of White House schedules that a Trump aide had scanned and then downloaded onto her computer, which because of duplicates amounted to 13,584 pages, of which just 15 pages were classified. DOJ had tried to provide all the unclassified pages in June, but Trump asked DOJ to hold off. That requested delay is one of the reasons Trump claims he can’t stand trial before the election.

Trump also spent weeks of October complaining that DOJ had provided 1,400 pages of Jencks materials (statements related to the case from people who’ll be witnesses at trial) in October, rather than the weeks before trial, when it is due.

Kise also complained he couldn’t review the classified discovery because he had to be in Trump’s 3-month fraud trial in New York, something that was known when Judge Cannon set the schedule.

As the government notes, Aileen Cannon’ schedule only had one deadline, for the initial production of classified documents, and the only delay in meeting that deadline came from Judge Cannon’s own dawdling over the protective order.

The Scheduling Order set September 7 as the deadline for the Government’s first production of classified discovery. The Government delivered certain classified discovery to the defense SCIF before then, but it was not available to the defense until September 13, after the Court entered the CIPA Section 3 protective orders, ECF Nos. 150-152.

Below I’ve put the series of claims Trump has made with DOJ’s debunking.

Claim:

On October 17, 2023, the Special Counsel’s Office caused approximately 2,487 pages of documents and four discs to be delivered to President Trump’s counsel, for the first time, at a secure facility in this District.

Debunking:

As the Government explained in a recent filing, ECF No. 187 at 5-6, it informed the defense on October 6 that the production had been provided to the Classified Information Security Officer (CISO) and inquired the next day when the defense would resume its review of classified discovery in the defense SCIF, so the Government could arrange for it to be delivered there. Defense counsel waited 11 days, from October 6 until October 17, to receive the materials in the defense SCIF.

Claim:

[T]he Office’s October 6, 2023 production of approximately 2,400 pages of additional classified discovery is still not available for review in this District.

Debunking, One:

As the Government explained in a recent filing, ECF No. 187 at 5-6, it informed the defense on October 6 that the production had been provided to the Classified Information Security Officer (CISO) and inquired the next day when the defense would resume its review of classified discovery in the defense SCIF, so the Government could arrange for it to be delivered there. Defense counsel waited 11 days, from October 6 until October 17, to receive the materials in the defense SCIF.

Debunking, Two:

As in all federal criminal cases involving classified discovery, to ensure confidentiality for the defense, the Government does not have access to the defense SCIF. To deliver classified discovery to the defense SCIF requires the presence of either the CISO or appropriately cleared members of the defense team.

Claim:

A recent, untimely production nearly doubled the volume of classified discovery, and the Office has not explained why those materials were withheld from prior productions.

[snip]

[T]he Special Counsel’s Office recently made available a classified production consisting of approximately 2,400 pages and four discs.

Claim:

[T]he Office still has not explained the timing of its October 6, 2023 production of thousands of pages of additional classified discovery, which is greatly in excess of what the Office estimated to the Court as recently as September 12, 2023.

Debunking:

[T]he largest set of documents in the most recent classified production—a set of about 1,400 pages of emails described in defendant Trump’s classified supplement—consists mostly of Jencks material, which this Court has indicated is not due until closer to trial.

Claim:

Mr. Kise has not yet been cleared fully to review all the CIPA materials and is currently representing President Trump in a trial in New York which is expected to conclude by December 22, 2023, well after expiration of many current deadlines as well as the hearing dates this Court has established. See People v. Trump, et. al, Index No. 452564/2022 (N.Y. Sup. Ct. 2022). He has therefore had no opportunity to review any of the CIPA materials or to participate in the preparation of the defense. President Trump should not be denied the assistance of core counsel in a matter of this significance due to the Government’s delayed discovery process.

Debunking:

Mr. Kise received an interim security clearance in late July, which authorized him to review about 2,100 pages of classified discovery the moment they were produced on September 13–the same day the protective orders issued. ECF Nos. 150, 151, 152. These materials included 16 of 31 charged documents and about 600 pages of classified interview transcripts, among other materials. So, although it is true that as of their filing Mr. Kise had not been “cleared fully,” it is inaccurate to suggest that that fact at all explains his failure to review “any of the CIPA materials.” This leaves only one of the proffered explanations for Mr. Kise’s alleged inability to review “any of the CIPA materials” as the possibly accurate one—Mr. Kise’s competing obligations in the New York trial. But those obligations were aired at the July 18 scheduling hearing, July 18 Tr. at 35, 43, and the Court has already taken them into account in setting trial in May.

Claim:

[T]the Office omits from its “supplemental response” that the four discs contained more than three gigabytes of data relating to six facilities, approximately 13,584 additional pages.

Debunking:

[A]ll but 15 pages of this 13,584-page set of materials had already been produced in unclassified discovery; and the reason the entire set of materials—including the previously produced unclassified pages—was provided together in classified discovery is that the defense asked that it be done that way. The 13,584 pages consist of multiple copies of documents from a box of scheduling materials from Trump’s presidency stored at Mar-a-Lago and elsewhere in West Palm Beach. During the investigation of this case, the Government obtained duplicate copies of the box’s contents—including from the box itself, as well as from a laptop and a cloud storage account to which an aide to defendant Trump had scanned copies—totaling the 13,584 pages, only 4,242 of which are unique. Fifteen of the pages were classified. On June 21, the Government produced to defendant Trump the unclassified digitized contents of the box, containing all but the 15 classified pages of the total of 4,242 unique pages. During a meet-and-confer on September 20, the defense indicated that rather than receiving productions of only the classified pages extracted from electronic devices, separated from the digitized unclassified material already provided in unclassified discovery, they wanted to receive any classified pages from electronic media together with surrounding contents so that it could ascertain where the pages had been stored.

Claim [classified supplement]:

The special measures documents could not be discussed in the defense SCIF when counsel resumed review of materials there on October 17 and 18.

Debunking:

[A]n equipment failure deactivated a security measure that prevented discussion of the special measures documents in Defense SCIF 1 (but review could still occur), and that the following day, October 18, counsel moved one block over to Defense SCIF 2, which was authorized for both review and discussion of all the classified discovery and to which the special measures documents were re-delivered.

Stan Woodward Blows Off Any Duty of Loyalty to His Former Client

October 20, 2023/51 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

I noted yesterday that the government claimed that Stan Woodward had conceded he had a duty of loyalty to Yuscil Taveras that would limit what he could do in an eventual trial of Walt Nauta.

In his own response, however, Woodward makes no mention of any duty of loyalty to a former client. Instead, he engages in a great deal of word games to suggest precedents don’t apply to what he repeatedly describes as “[very] limited” representation of Taveras.

Instead, the Special Counsel’s Office seeks to micromanage defense counsel’s handling of any potential conflict arising from the trial testimony of a witness, which such witness benefited from limited former representation, no ongoing dual representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for crossexamination by the counsel in question (as co-counsel is available for the same).2

[snip]

[T]he very limited representation of an individual whom the Special Counsel’s Office wished to question in relation to a matter that later developed into a criminal prosecution of another client.

It’s a ploy used in Woodward’s surreply, as well.

The case at bar – involving limited former representation, no ongoing joint representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for cross-examination by the counsel in question (as other counsel is available for same) – is entirely incompatible with these cases and demonstrates the insubstantiality of the Special Counsel’s Office’s present use of a conflict rationale.

Even if it were the case that clients weren’t entitled to privilege if a representation was limited in time or scope, it ignores a very crucial detail of this case.

DOJ told Woodward he had a potential conflict before Taveras testified to the grand jury in March, where he denied knowing about the attempt to delete surveillance video.

In February and March 2023, the Government informed Mr. Woodward, orally and in writing, that his concurrent representation of Trump Employee 4 and Nauta raised a potential conflict of interest. The Government specifically informed Mr. Woodward that the Government believed Trump Employee 4 had information that would incriminate Nauta. Mr. Woodward informed the Government that he was unaware of any testimony that Trump Employee 4 would give that would incriminate Nauta and had advised Trump Employee 4 and Nauta of the Government’s position about a possible conflict. According to Mr. Woodward, he did not have reason to believe his concurrent representation of Trump Employee 4 and Nauta raised a conflict of interest.

The only way this representation would be so limited would be if Woodward did nothing to figure out what kind of legal exposure Taveras was facing in his March grand jury appearance.

Woodward continued to deny his representation of both Nauta and Taveras created a conflict even after DOJ gave Taveras a target letter — in part because he had advised Taveras that if he wanted to cooperate, he could get a different lawyer.

[T]he government provides no information to support their claim that [Taveras] has provided false testimony to the grand jury. While counsel does not preclude that the government may have provided more information to the Court ex parte, the government’s current representation that [Taveras] has clearly presented false or conflicting information to the grand jury is wholly unsupported by any information available to counsel. Further, even if [Taveras] did provide conflicting information to the grand jury such that could expose him to criminal charges, he has other recourse besides reaching a plea bargain with the government. Namely, he can go to trial with the presumption of innocence and fight the charges as against him. If [Taveras] wishes to become a cooperating government witness, he has already been advised he may do so at any time.

[snip]

Ultimately, [Taveras] has been advised by counsel that he may, at any time, seek new counsel, and that includes if he ultimately decided he wanted to cooperate with the government.

Woodward seems to suggest that Taveras has waived his privilege because he told prosecutors what advice Woodward had given him.

Because it appears that the Special Counsel’s Office well knows what was disclosed to defense counsel by Trump Employee 4, the Special Counsel’s Office cannot maintain its position that the revelation of the same is barred. Put differently, the assertion of the Special Counsel’s Office of a presumption of continuing privilege in this context, where the Special Counsel’s Office sought and obtained new counsel for Trump Employee 4 for the purpose of providing a means for Trump Employee 4’s testimony to change, and for his prior assertions to be explained by him—all of which was done not in the District where this case is pending, but in a faraway District, raising separate issues of grand jury misconduct—warrants development of the record at a hearing so as to ascertain to what extent any applicable privilege has been waived by Trump Employee 4’s disclosures to the Special Counsel’s Office. At a minimum, if the Special Counsel’s Office persists in asserting that privileged information remains, an evidentiary hearing is warranted as to what the Special Counsel’s Office is withholding regarding Trump Employee 4, his claims as to prior representation, and whether there has been any failure to disclose such matters to the Special Counsel’s Office.

Here, Woodward fashions privilege to consist only of confidentiality, not loyalty. And he suggests that because Taveras has shown some kind of disloyalty to him, he doesn’t owe any back.

In the filing, Woodward makes an oblique reference to Beryl Howell’s ruling finding Evan Corcoran’s advice to Trump to be crime-fraud excepted (though as he always does, he calls the underlying grand jury investigation in this very case a “faraway” District).

[I]t is noteworthy that in the United States District Court for the District of Columbia the Special Counsel’s Office has taken precisely the opposite position with respect to privileged communications. Specifically, in that District, the Special Counsel’s Office took the position that where a witness represented by counsel in a government compliance matter is not forthcoming with their counsel, a crime-fraud exception applies, voiding the attorney-client privilege. While Mr. Nauta vehemently opposes any application of the crime-fraud rulings made in a faraway District to this case, it is nevertheless impermissible for the Special Counsel’s Office to tailor the positions it takes before courts and/or grand juries in the various Districts where it seeks an advantage in its prosecution of former President Trump and his coconspirators.

This appears to be an attempt to liken Trump’s affirmative lies to Corcoran to Taveras’ own communications with him.

But, particularly with the demand for a hearing to find out what Taveras has told SCO about Woodward’s advice to him, it comes off as flopsweat about his, Woodward’s, own conduct.

Stan Woodward Contemplating His Former Client Might “Become Unavailable” for Testimony

October 18, 2023/90 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Last week, Judge Aileen Cannon had the much delayed Garcia vote to make sure that Trump’s co-defendants, Walt Nauta and Carlos De Oliveira, had knowingly waived any conflicts their attorneys had. The reporting on the hearing all focused on the scolding Cannon gave the Special Counsel’s Office, because they had brought up a possible risk — that Stan Woodward would impugn Yuscil Taveras during closing arguments — they hadn’t previously briefed.

I do want to admonish the Government for, frankly, wasting the Court’s time because, had you brought up these issues in an appropriate way, we could have done this without circling the wagons and creating confusion that was unnecessary. So, I am disappointed in that.

Immediately after the hearing, journalists presented conflicting stories about the hearing, some reporting that biggest flashpoint was an assertion by the government that Stan Woodward should be categorically excluded from cross-examining his former client Yuscil Taveras at trial, and others reporting the problem to be that SCO’s David Harbach suggested that Woodward should also be prevented from maligning the man he used to represent in closing arguments.

None of the coverage I saw got something very basic right: what the past briefing had been about.

The past briefing was about whether to have a Garcia hearing. It wasn’t about what to include in a Garcia hearing.

David Harbach, arguing for Special Counsel, even pointed that out in the morning session.

MR. HARBACH: Specifically it is our view that a lawyer who suffers under a conflict, that — in that situation the lawyer is precluded from — by his duty of loyalty to his [former] client, from arguing to the jury that his former client lacks credibility or attacking his former client’s character.

And those obligations flow from the lawyer’s duty of loyalty to his or her former client, and do not turn on whether specific confidential information was provided to the lawyer that might or might not facilitate better or worse cross-examination of the witness.

THE COURT: All right. So, did you make this argument about sort of weaker arguments to juries in your papers?

MR. HARBACH: Not in our papers suggesting that we needed to have a hearing because that wasn’t necessary for the Court’s obligation to conduct this hearing.

Harbach pointed out — rather meekly — that previously they had only been arguing that Cannon needed to hold a hearing. She never asked what to include in it.

Don’t believe me? Here’s the tell: After the hearing, Judge Cannon ordered just that briefing.

On or before October 17, 2023, the parties shall meaningfully confer to further clarify the nature, scope, and potential manifestations of the conflicts alleged by the OSC regarding Stanley Woodward’s former representation of Trump Employee 4 and current representation of Witness 1. 1 This conferral should include a comprehensive discussion of the ways in which the OSC believes that Mr. Woodward’s former representation of Trump Employee 4 and current representation of Witness 1 could adversely affect Mr. Woodward’s performance so as to render his assistance of Defendant Nauta ineffective, in violation of the Sixth Amendment.2 The OSC shall disclose to defense counsel all legal authorities in support of its position so that Mr. Woodward may adequately advise Defendant Nauta prior to the continued Garcia hearing.

Sure, she blamed Jack Smith’s team, pretending they brought up new stuff. They did! But they did so only because she had never considered the full scope of the conflict.

She still isn’t. She views the conflict exclusively in terms of Nauta’s rights; she’s ignoring Yuscil Taveras’ right to have his past attorney-client privilege respected.

None of the discussion at the hearing addressed the obligations under the Florida Bar, which SCO included in their original motion.

The Rules Regulating the Florida Bar reflect these concerns, providing that, absent informed consent, a lawyer “must not represent a client” if “there is a substantial risk” that the representation “will be materially limited by the lawyer’s responsibilities to another client” or “a former client.” Fla. Bar R. Prof’l Conduct 4-1.7(a).4 Informed consent requires, among other things, that “each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.” Fla. Bar R. Prof’l Conduct 4-1.7(b)(4). The Rules further provide that “[a] lawyer who has formerly represented a client in a matter must not” either “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent” or “use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known.” Fla. Bar R. Prof’l Conduct 4-1.9(a)-(b). The commentary to the Rule explains that “information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client without the former client’s consent.” Fla. Bar R. Prof’l Conduct 4-1.9 commentary. [my emphasis]

And because journalists were so focused on Cannon blaming prosecutors, forgetting that she has already blamed prosecutors for her own fuck-ups and manufactured problems, they missed two specific things that Woodward said.

First, as ABC noted, Woodward was angriest that he might be be prevented from cross-examining Taveras. As part of his argument, he suggested he didn’t have to address that eventuality because Taveras — still a Trump employee — might instead “become[] unavailable.”

MR. HARBACH: So, that is why we think in this case it is crystal clear that Mr. Nauta should be advised and should be well aware of the possibility, likelihood, eventuality, however your Honor would like to put it, that his lawyer would not be able to cross-examine Trump Employee 4 at trial. That much seems clear, and we don’t, frankly, understand how Mr. Woodward could think that he could cross-examine Mr. — Trump Employee 4 under these circumstances. We are at a loss.

[snip]

MR. WOODWARD: To presume that I am incapable of cross-examining him is a presumption that is unnecessary because, contrary to the Government’s position, we don’t know that he will testify in this trial. There is the potential that the Court could preclude him from testifying. There is the potential that he becomes unavailable.

Woodward’s solution to a conflict is to contemplate that Taveras might become unavailable for testimony. Woodward did this even while arguing that SCO was asking both too early and too late for a conflicts hearing.

Plus, most coverage missed Stanley Woodward’s past claims.

It is absolutely bullshit that cross-examination didn’t come up. In Woodward’s sur-reply, his last bid to prevent this conflict hearing, he stated that of course cross-examination wouldn’t be a problem, because another attorney (Sasha Dadan) was available.

11 The Special Counsel’s Office cites particularly inapt conflict cases which reveal the lack of a sound basis to request the hearing that the Office now seeks. See United States v. Braun, No. 19-80030-CR, 2019 WL 1893113, at *1 (S.D. Fla. Apr. 29, 2019) (hearing as to, ”two defense attorneys from [the same firm, jointly] representing two defendants in this case[.]”); United States v. Schneider, 322 F. Supp. 3d 1294, 1296-97 (S.D. Fla. 2018) (addressing representation of two co-defendants, where counsel represented first defendant in his role as a cooperating government witness, and then thereafter newly took on representation of the second defendant, the target of the cooperation, while still representing the first cooperating defendant). The case at bar – involving limited former representation, no ongoing joint representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for cross-examination by the counsel in question (as other counsel is available for same) – is entirely incompatible with these cases and demonstrates the insubstantiality of the Special Counsel’s Office’s present use of a conflict rationale. [my emphasis]

I wrote about Woodward’s comments in a post called, “Stan Woodward Thinks Aileen Cannon Is an Easy Mark.”

We will get SCO’s brief later today about the scope of what Cannon should be asking, with Woodward’s due tomorrow, and the follow-up hearing Friday.

But things are going to get testy. In her order, Cannon finally copped onto how testy they might get. She envisioned the possibility of considering a disqualification motion after the Garcia hearing.

2 To date, the OSC has not moved the Court to disqualify Mr. Woodward as counsel or to impose remedial measures on Mr. Woodward’s ability to perform as counsel for Defendant Nauta [ECF No. 97 p. 9]. Any consideration of disqualification or imposition of other remedial measures will be addressed following the Garcia hearing as part of the Court’s decision to accept or decline any proffered waiver.

Taveras has not waived privilege. It’s not clear how, under Florida Bar rules, Woodward can comment about the conflicting testimony Taveras gave while represented by the DC attorney.

“POTUS is very emotional and in a bad place.” Donald Trump’s Classified Discovery

October 10, 2023/120 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

As part of Trump’s attempt (with some, albeit thus far limited, success — Judge Chutkan already gave Trump a small extension, and Judge Cannon has halted CIPA deadlines) to stall both his federal prosecutions by complaining about the Classified Information Protection Act, both sides have submitted recent filings that provide some additional details about the classified discovery in his two cases.

Among other things, the filings seem to suggest that Donald Trump was caught storing other documents about US nuclear programs at his beach resort, in addition to the one charged as count 19 of his indictment.

January 6 Election Intelligence

In Trump’s January 6 prosecution, the government’s response to Trump’s bid to delay the CIPA process described the classified evidence Trump’s team had reveiwed in the case this way:

Defense counsel responded that they anticipated review the week of September 25, and later the date was finalized for September 26. Due to the classification levels of certain of the discovery material, the CISO conducted additional read-ins that morning for Mr. Blanche, the Required Attorneys, and the Required Paralegal, and the defense was provided the classified discovery around 10:35 a.m., except for one further controlled document that was provided around 2:30 p.m.

The classified discovery reviewed by the defense consisted of approximately 975 pages of material: (1) a 761-page document obtained from the Department of Defense, the majority of which is not classified;1 (2) an FBI-FD 302 of the classified portion of a witness interview for which the Government already provided a transcript of the unclassified portion, as well as attachments, totaling 52 pages; (3) a 12-page document currently undergoing classification review by the Department of Defense; (4) the 118-page classified transcript the Government described at the CIPA § 2 hearing on August 28; and (5) a further controlled document that is a classified version of a publicly-available document produced in unclassified discovery that contains the same conclusions.2

1 The Government did not include this document in its page estimate at the CIPA § 2 hearing, only later determining that in an abundance of caution the entire document should be produced in classified discovery, even though—as indicated by page and portion markings—the majority of it is not classified. In its cover letter accompanying the classified discovery production, the Government made clear its willingness to discuss producing the unclassified pages and portions in unclassified discovery.

2 See Bates SCO-03668433 through SCO-03668447 (produced to the defense in the first unclassified discovery production on August 11, 2023).

Trump’s reply appears to have described what two of these — item 1 and item 5 (and possibly also item 3, which may have been included as part of item 1) — were.

Item 5 consists of the classified version of the Intelligence Community’s Foreign Threats to the 2020 Election publicly released in March 2021.

The Special Counsel’s Office alleges that the Director of National Intelligence “disabused” President Trump “of the notion that the [USIC’s] findings regarding foreign interference would change the outcome of the election.” (Indictment ¶ 11(c)). The Office points out that these “findings” are set forth in a “publicly-available version of the same document that contains the same ultimate conclusions.” (Opp’n at 12). This is a reference to the unclassified version of the National Intelligence Council’s March 2021 Report titled “Foreign Threats to the 2020 US Federal Elections” (the “Report”).3

3 The unclassified Report is available at: https://www.dni.gov/files/ODNI/documents/assessments/ICA-declass-16MAR21.pdf

Trump is demanding that DOJ provide details of every actual compromise during the 2020 election — things like Iran’s effort to pose as Proud Boys to suppress Democratic votes — in order to support his claim that the classified evidence in this case is more central than it is.

Item 1 appears to include a bunch of materials that Mark Milley had preserved about the fragile state of the country and — even more so — Trump after the attack.

The Special Counsel’s Office has sufficient access to the files of the Department of Defense (“DOD”) to produce to President Trump two documents, totally [sic] approximately 773 pages, that the Office “obtained” from DOD. (Opp’n at 5). It appears, however, that there is a larger set of relevant DOD holdings, which the Office must review and make any necessary productions required by Rule 16, Brady, Giglio, and the Jencks Act.

In November 2021, General Mark Milley told the House’s January 6 Select Committee that “we have a boatload of documentary stuff . . . both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot.” (Tr. 10).6 In response to a question about a particular document, General Milley volunteered that he had overclassified a large volume of relevant material:

I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves. We’ll take care of that. We can get this stuff properly processed and unclassified. (Tr. 169).

In addition to the above-referenced classified documents “obtained” from DOD, the Special Counsel’s Office has produced nearly a million pages of documents from the House Select Committee. But it is not clear that those materials include any of the classified documents referenced by General Milley during his testimony, or whether the Office has even reviewed those materials.

6 The transcript is available at: https://www.govinfo.gov/content/pkg/GPO-J6-TRANSCRIPTCTRL0000034620/pdf/GPO-J6-TRANSCRIPT-CTRL0000034620.pdf.

What Trump accuses Milley of overclassifying appears to have been, instead, classified to prevent detrimental things said about Trump — including by his Chief of Staff — from being shared publicly. As Milley described to the January 6 Committee. he made a point of preserving all of it because he understood the significance of January 6.

So what I saw unfold on the 6th was disturbing, to say the least, and I think it was an incredible event. And I want to make sure that whatever information I have and I can help you determine facts, atmospherics, opinions, whatever, determine lines of inquiry. In any manner, shape, or form that I or the Joint Staff can help, I want to make sure that we do that, because I think the role of the committee is critical to prevent this from ever happening again.

[snip]

We also have — and I want to make sure that you know that we have and we’ll provide it to you, the Joint Staff — we have a boatload of documentary stuff. I think we provided a bunch of emails, which is good. We have both classified and unclassified stuff. And I will make sure that you get whatever we have. And it’s a lot. We have it in binders.

Immediately following the 6th, I knew the significance, and I asked my staff, freeze all your records, collate them, get them collected up. I had one of the staff, a J7, you 10 know, package it up, inventory it, put it all in binders and 11 all that kind of stuff. So we have that, and you’re welcome to all of it, classified and unclassified. And I want to make sure that everything is properly done for the future. That’s very important to me.

The materials include — again, per Milley’s testimony — commentary from people like Mark Meadows and Christopher Miller about Trump’s state on January 7.

General Milley. So where was I? Oh. Anyway, so general themes: steadiness overseas, constantly watching Iran, North Korea, China, Russia, terrorists. Venezuela, by the way, was another one. So there’s a series of these potential overseas crises. In several of the calls — and my theme was I sounded like a broken record: Steady, breathe through your nose, we’re going to land the — we’re going to 4 land this thing, peaceful transfer of power. That was a constant message of mine. And both Pompeo and Meadows didn’t push back on that at all. It was “roger that” sort of thing.

So, now, there was a couple of calls where, you know, Meadows and/or Pompeo but more Meadows, you know, how is the President doing? Like, Pompeo might say, “How is the President doing,” and Meadows would say, “Well, he’s in a really dark place,” or “he’s” — you know, those kind of words. I’d have to go back to some notes to get the exact phrasing, but that happened a couple different times.

I’m looking for — on this timeline, like, here is one, for example, on the 7th of January, so this is the day after, right? “It’s just us now.” And I can’t remember if it was Pompeo or Meadows that said that, but I didn’t say it. “It’s just us now.” In other words, it’s just the three of us to land this thing. I’m, like, come on, man. This is — there’s millions of people here. But anyway. I’m not trying to be overly dramatic, but these are quotes. “POTUS is very emotional and in a bad place.” Meadows . So that – – that’s an example. Same day, different meeting with Acting SecDef Miller.” POTUS not in a good spot.” Whatever that means.

Ms. Cheney. Uh-huh.

General Milley. You know, these aren’t my words. These are other people’s words. Kellogg, same day, seventh phone call: “Ivanka was a star.” “She’s keeping her father calm.” “Everyone needs to keep a cool head.” So it’s the — you know, it’s comments. These are just phrases, but there’s–

Ms. Cheney. Yeah.

General Milley. there’s conversations like that, and, you know, for me, as the Chairman, I’m, like, hmmm. So all I’m trying to do is watch my piece of the pie. I’m not in charge of anything. I just give advice and just trying to keep it steady.

Ms. Cheney. I know we have to take a break, General Milley, and the camera is not working here, so I can’t see you guys, but are the notes that you’re reading from, are those notes that we have? Are they in the exhibits, or are those notes that we can get if we don’t?

General Milley. No. We can — I can provide them. I’ll swear to it, you know, that kind of thing if I need to do an affidavit on whatever you want.

[Redacted] And I think this is in a classified production.

General Milley. Those notes came from the timeline that I produced to the Joint Staff, essentially.

Ms. Cheney. Yeah.

General Milley. On this timeline, it’s actually classified, but, again, almost all of the substance is it not classified. The document I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It’s not that the substance is classified. It was I wanted to make sure that this stuff was only going to go people who appropriately needed to see it, like yourselves.

We’ll take care of that. We can get this stuff properly processed and unclassified so that you can have it —

[Redacted] That would be great.

Trump is demanding this stuff under Rule 16 (the defendant’s own statements), Brady (exculpatory evidence), Giglio (deal made with other witnesses), and Jencks Act (statements by potential government witnesses). Trump is asking for all memorializations that Milley or anyone else made of things Trump said — and he’s preparing to claim that that amounts to exculpatory evidence.

And both the review of this memorialization and the court filings happened after Trump threatened to execute Milley on September 22, Trump’s treatment of it — and his claim that Milley overclassified it — can’t be taken in isolation from it, especially given the inclusion of the Iran attack document, which Trump was showing off at Mar-a-Lago even before Milley’s January 6 testimony — in the superseding stolen documents indictment.

That is, having discovered that Milley preserved the crazy things Trump said and the crazy Trump’s most loyal aides said about Trump, Trump wants to make that a centerpiece of his graymail attempt, preparing a claim that the very act of memorializing all this amounts to disloyalty, all while arguing that he needs it to discredit Milley or Meadows or anyone else involved if they testify at trial.

Stolen Documents

In the stolen documents case, classified material is obviously more central to Trump’s alleged crimes and the sensitivity of the materials involved is much greater. Even though there have been some sound educated guesses as to what the charged documents include, it’ll be months before we get real detail at trial.

Nevertheless, the competing claims about classified discovery have provided some new details about the documents charged against Trump — specifically, regarding ten documents that, for two separate reasons, held up reviews by Trump’s lawyers. at the SCIFs in Florida being used for the case.

As Trump laid out in his reply to his bid to delay the trial, at first five, then another four of the documents charged against him were not placed in the SCIF in Miami Trump has been using, because they are so sensitive — though are available in a SCIF in DC. In addition, there was one document that only recently became available in that SCIF.

Nine of the documents charged in the 32 pending § 793(e) counts, as well as “several uncharged documents,” are not available to the defense in this District. (Opp’n at 6).4 The document relating to Count 19 was made available to President Trump for the first time late in the afternoon of October 3, only after counsel left the District following two days of review at the temporary Miami SCIF.

4 As we understand it, documents relating to Counts 6, 22, 26, and 30 have been relocated to the District of Columbia at the request of the documents’ “owners.” (See Opp’n at 6-7 n.4). The documents relating to Counts 5, 9, 17, 20, and 29 are not available to President Trump or counsel at any location.

The one document that only recently became available is the single charged document classified under the Atomic Energy Act — here, marked as FRD or “Formerly Restricted Document.”

Document 19: [S/FRD] Undated document concerning nuclear weaponry of the United States; seized in August 8, 2022 search.

As noted here, because it was classified under the Atomic Energy Act, Trump could not declassify it unilaterally, which is undoubtedly why it was charged.

As the government described in its response to this CIPA request on September 27, the presence of one particular charged document and several uncharged documents which required some specific clearance had meant Trump’s lawyers couldn’t get into the SCIF at all, until the Information Security Officer withdrew them, which she or he did on September 26.

The Government has recently been informed that multiple defense counsel for Trump now have the necessary read-ins to review all material in the Government’s September 13 production, with the exception of a single charged document and several uncharged documents requiring a particular clearance that defense counsel do not yet possess. The Government understands that the presence of these documents in the set of discovery available in the defense SCIF in Florida had prevented the defense from gaining access to a safe containing a subset of classified discovery when the defense reviewed the majority of the September 13 production during the week of September 18, 2023. On September 26, at the Government’s request, the CISO removed the documents requiring the particular clearance from the safe so that the remainder of the subset would be fully available to Trump’s counsel.

If, as seems likely, document 19 was the one had to be withdrawn until all lawyers got an additional clearance, it suggests the other uncharged documents were also classified under the AEA. If so, it would mean FBI discovered additional US nuclear documents, potentially included ones that remain restricted, found at Mar-a-Lago but have not been charged.

These are the five that were always given that special handling, treating them as too sensitive to be placed in the SCIF in Miami.

Document 5: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN] Document dated June 2020, concerning nuclear capabilities of a foreign country; seized in August 8, 2022 search.
Document 9: [TS//[REDACTED]/[REDACTED]//ORCON/NOFORN/FISA] Undated document concerning military attacks by a foreign country; seized in August 8, 2022 search.
Document 17: [TS//[REDACTED]/TK/ORCON/IMCON/NOFORN] Document dated January 2020 concerning military capabilities of a foreign country; seized in August 8, 2022 search.
Document 20: [TS//[REDACTED]//ORCON/NOFORN] Undated document concerning timeline and details of attack in a foreign country; seized in August 8, 2022 search.
Document 29: [TS//[REDACTED]//SI/TK//ORCON/NOFORN] Document dated October 18, 2019, concerning military capabilities of a foreign country.

And these are the four that were initially placed in the Miami SCIF, but later withdrawn after a request by the document originators.

Document 6: [TS//SPECIAL HANDLING] Document dated June 4, 2020, concerning White House intelligence briefing related to various foreign countries; seized in August 8, 2022 search.
Document 22: [TS//[REDACTED]//RSEN/ORCON//NOFORN] Document dated August 2019, concerning military activity of a foreign country; turned over on June 3, 2022.
Document 26: [TS//[REDACTED]//ORCON//NOFORN/FISA] Document dated November 7, 2019, concerning military activity of foreign countries and the United States; turned over on June 3, 2022.
Document 30: [TS//[REDACTED]//ORCON/NOFORN/FISA] Document dated October 15, 2019, concerning military activity in a foreign country; turned over on June 3, 2022.

Here’s how Jack Smith’s team described these documents.

As noted above, a small collection of highly sensitive and classified materials that Trump retained at the Mar-a-Lago Club are so sensitive that they require special measures (the “special measures documents”), including enhanced security protocols for their transport, review, discussion, and storage. The special measures documents constitute a tiny subset of the total array of classified documents involved, which is itself a small subset of the total discovery produced. From the outset of this case, the SCO and the CISO have been aware of some of the special measures documents, but only recently, the SCO and the CISO learned that others—still constituting a small fraction of the overall discovery—fall into that category as well.

[snip]

To be sure, the extreme sensitivity of the special measures documents that Trump illegally retained at Mar-a-Lago presents logistical issues unique to this case. But the defendants’ allegations that those logistical impediments are the fault of the SCO are wrong. The defendants’ claim that the SCO has failed “to timely remedy the situation,” ECF No. 167 at 2, or “to make very basic arrangements in this District,” id. at 4, proceeds from the false premise that the SCO controls the situation—it does not. Nonetheless, the SCO has also offered to—and did—make a facility available to the defense in Washington, D.C., that can accommodate the review and discussion of all the discovery in this case, including the special measures documents.

What’s interesting about this collection is how they compare and contrast with others of the 32 documents charged.

For example, these documents are not being treated with greater sensitivity because they were subject to Special Handling requirements likely related to contents of the Presidential Daily Briefs; several other charged documents (eg, 1, 2, and 4), in addition to document 6, were subject to Special Handling.

Matt Tait and Brian Greer had speculated that some of these — documents 26, 29, and 30 — might be part of a cluster of related documents, but others that similarly date to October and November 2019 are not being treated with this same special handling.

Most of these documents include special compartments (reflected by the [REDACTED] classification mark(s)), but document 6 does not. That said, all the documents with such redacted compartments are being treated with that special handling. So perhaps the most likely explanation is that document 6 reflects Trump getting briefed on something outside the scope of a formal document, which therefore didn’t have the appropriate compartment marks.

Whatever explains it, someone doesn’t trust these documents to be stored in a SCIF in Miami.

Todd Blanche Confuses Aileen Cannon’s Prior Trump Reversal with Tanya Chutkan’s Individualized Guilt

September 12, 2023/63 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

John Lauro is the Trump lawyer who submitted and signed the motion for recusal in Trump’s January 6 case, and so virtually all commentators are attributing the motion to him. But Todd Blanche also appears on the document.

That means one of Trump’s lawyers from the stolen documents case, in which Aileen Cannon — confirmed in the period after Trump lost the election and cozy with Leonard Leo — chose not to recuse herself after a blistering reversal over her earlier decision to butt in last summer, in which Aileen Cannon has done nothing (nothing public, at least) to preserve the Sixth Amendment rights of Trump’s co-defendants, but has instead served the interests of the Trump-paid lawyers representing them, has remained silent about any conflict in that case but signed onto a claim of conflict with Tanya Chutkan.

There is an overwhelming public interest in ensuring the perceived fairness of these proceedings. In a highly charged political season, naturally all Americans, and in fact, the entire world, are observing these proceedings closely. Only if this trial is administered by a judge who appears entirely impartial could the public ever accept the outcome as justice.

Todd Blanche’s willingness to sign onto this motion only underscores the bad faith of it.

The substance of the claimed conflict is remarkably thin: In the sentencing hearings of Robert Palmer and Christine Priola, Chutkan said something about those who planned the riot. Between the two hearings — the first in December 2021 and the second in October 2022 — Trump’s lawyers claim they show that Chutkan has already formed an opinion about Trump’s guilt, even while they acknowledge that Chutkan’s language addresses claims of incitement with which Trump has not been charged.

These are cherry picks. From Palmer’s for example, Trump’s lawyers found a line in which Chutkan said she had opinions about whether those who planned the riot should be charged, even while she said her opinions are not relevant.

He went to the Capitol because, despite election results which were clear-cut, despite the fact that multiple court challenges all over the country had rejected every single one of the challenges to the election, Mr. Palmer didn’t like the result. He didn’t like the result, and he didn’t want the transition of power to take place because his guy lost. And it is true, Mr. Palmer — you have made a very good point, one that has been made before — that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged. That is not this court’s position. I don’t charge anybody. I don’t negotiate plea offers. I don’t make charging decisions. I sentence people who have pleaded guilty or have been convicted. The issue of who has or has not been charged is not before me. I don’t have any influence on that. I have my opinions, but they are not relevant.

***

So you have a point, that the people who may be the people who planned this and funded it and encouraged it haven’t been charged, but that’s not a reason for you to get a lower sentence.

This is a colloquy that goes on in many January 6 sentencing hearings, because many defendants — up to and including Enrique Tarrio and Joe Biggs — like to blame Trump for their woes. After that happens, whatever judge is presiding, whether appointed by a Republican or Democrat, notes that people are still responsible for their own actions.

This is, in fact, a pretty mild version, even among some Republican appointees.

But Trump’s team ignored Judge Chutkan’s more general commentary about how everyone should treat others with more humanity.

I feel certain that if people would expose themselves to a variety of opinions and sources of information, we might not have had January 6th. But people get very siloed and listen to an echo chamber of information and opinion, and you get a very warped view of what’s really going on in the world; and that may be part of it, but in doing so, you fail to see other people as human beings. And that is one of the things I see here as a judge, is there is a failure to acknowledge other people’s humanity.

From the Priola sentencing, Trump’s lawyers focused on Chutkan’s observation that the person to whom rioters were loyal remained free.

[T]he people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.

This is remarkably thin gruel on which to hang a claim that Chutkan is biased against Trump but not Trump appointed Judges Dabney Friedrich or Tim Kelly, who’ve engaged in similar colloquies.

And it seems tactical. It was coming at some point, but Trump’s team has, after remaining silent for 42 days after this case was assigned to Chutkan, suddenly asked her to assess her own biases in expedited fashion, before ruling on the pending motion about Trump’s own threats against Judge Chutkan and others.

Additionally, given the overriding public interest in ensuring the appearance of fairness in this proceeding, President Trump requests the Court consider this Motion on an expedited basis and, pending resolution, withhold rulings on any other pending motion.

This is a tactical and cynical motion. And Todd Blanche’s participation in it makes it crystal clear that Trump doesn’t give a flying rat’s ass about the bias of Cannon or any appearance of bias they can wring out of Chutkan’s prior comments.

Rather, they’re doing this to claim that her future attempts to preserve the integrity of this proceeding — including to minimize death threats from Trump’s own supporters — instead itself evinces bias on her part.

Update: Here’s the full Priola sentencing transcript.

Posts

Election Interference: Aileen Cannon Denies Republicans Speedy Trial in Stolen Document Case

John Lauro’s DC Delay Tactics Backfire in Florida

Jack Smith Attempts to Prevent Trump from Delaying DC Trial with Interlocutory Appeals

Stan Woodward Claims He Doesn’t Know Where the Missing Beautiful Mind Boxes Went

Hours After Aileen Cannon Suggests She’ll Stall Florida Prosecution, Trump Moves to Stall DC One

The “Piles” of Chris Kise Bullshit Devlin Barrett Claims to Believe

Stan Woodward Blows Off Any Duty of Loyalty to His Former Client

Stan Woodward Contemplating His Former Client Might “Become Unavailable” for Testimony

“POTUS is very emotional and in a bad place.” Donald Trump’s Classified Discovery

January 6 Election Intelligence

Stolen Documents

Todd Blanche Confuses Aileen Cannon’s Prior Trump Reversal with Tanya Chutkan’s Individualized Guilt

Interesting links

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